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3/25/09

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Navigating New Hampshire’s

Ethics Laws

Updated March 25, 2009

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Contents

Overview of RSA 15-B – “Gifts, Honorariums and Expense Reimbursement”

Overview of RSA 21-G – Code of Ethics

Financial Disclosures

The Executive Branch Ethics Committee

Conflicts of Interest & Misuse of Position

Recusal

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GIFTS, HONORARIUMS AND

EXPENSE REIMBURSEMENTS

RSA 15-B – Effective June 2, 2006

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GIFTS, HONORARIUMS AND


WHO SHOULD BE INTERESTED IN RULES ON

GIFTS, HONORARIUMS AND EXPENSE

REIMBURSEMENTS?

– Elected officials

– Public officials

– Public employees

– Constitutional officials

– Legislative employees

}

And their family members

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GIFTS

WHAT IS A GIFT?

1. Money in any amount, whether in the form of cash,

check or any other negotiable or non-negotiable

instrumentality for the transfer of money.

2. Any other tangible thing, intangible thing, service,

or the use thereof having more than insignificant

economic value.

Items with a value of less than $25 are presumed to be of

insignificant economic value.

RSA 15-B:2, V

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POP QUIZ

What is a Gift?

a. Money

b. Services

c. Free pizza

d. Everything (13 exceptions to follow)

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GIFTS

WHAT IS NOT A GIFT:

– A political contribution as defined in RSA 664.

RSA 15-B:2, V(b)(1)

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GIFTS

WHAT IS NOT A GIFT (con’t):

– A commercially reasonable loan, made in the ordinary course of business.

RSA 15-B:2, V(b)(2)

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GIFTS


– Repayment to an elected official, public official, public employee, constitutional official, or legislative employee of a bona fide loan made by such a person.

RSA 15-B:2, V(b)(3)

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GIFTS


– A ceremonial object, award, or other commemorative object, which is personally inscribed to the recipient and which has inconsequential economic value. A ceremonial object or award with a value of

$150 or less is presumed to be of inconsequential economic value.

RSA 15-B:2, V(b)(4)

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GIFTS


– Objects which primarily serve an informational purpose provided in the ordinary course of business, such as reports, books, maps, or charts.

RSA 15-B:2, V(b)(5)

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GIFTS


– Money in any form, an object, or an intangible thing of economic value, where the donor’s act of giving is purely private and personal in nature and the money, object, or intangible thing of economic value would have been given and received even if the person were not an elected official, public official, public employee, constitutional official, or legislative employee.

RSA 15-B:2, V(b)(6)

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GIFTS


– Wages, salary, benefits, mileage or payment for expenses received by the person in his or her regular course of employment or business which is unrelated to the government position held.

RSA 15-B:2, V(b)(7)

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GIFTS


– Wages, salary, benefits, mileage, or payment for expenses paid to the person by the state, a county, or the United States of America related to performance of official duties.

RSA 15-B:2, V(b)(8)

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GIFTS


– Tickets or free admission to a charitable, ceremonial, or political event provided that:

(A) The proceeds of the event are subject to the political contributions and expenditure reporting law, RSA 664; or

(B) The event is sponsored by a charitable organization that is registered with the division of charitable trusts, department of justice, or which is a charitable organization pursuant to section 501(c)(3) of the federal tax code; or

(C) The event is published as an event open for attendance by any member of the general court in the calendar of the senate or the house.

RSA 15-B:2, V(b)(9)

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GIFTS


– Meals, beverages, lodging, or transportation associated with

attendance at:

(A) Any event for which the primary significance is ceremonial or

celebratory, provided the event is public or, if by invitation only, is

planned to have an attendance greater than 50 people; or

(B) Any event where the person is attending in an official capacity

representing the state and/or the senate, house, or the agency of

which the person is a member.

RSA 15-B:2, V(b)(10)

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GIFTS


– Expense reimbursement or an honorarium. (But…they must be reported)

RSA 15-B:2, V(b)(11)

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GIFTS


– Meals and beverages consumed in the course of official business.

RSA 15-B:2, V(b)(12)

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GIFTS


– Monetary on non-monetary awards or recognition issued under the suggestion and extraordinary service award program under RSA 99-E.

RSA 15-B:2, V(b)(13)

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GIFTS WHAT DOES THE RULE SAY?

I. It shall be unlawful to knowingly give any gift …, directly or indirectly, to any elected official, public official, public employee, constitutional official, or legislative employee.

RSA 15-B:3

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GIFTS WHAT DOES THE RULE SAY (con’t)?

II. It shall be unlawful to knowingly give any gift …, directly or indirectly, to any family member, …of any elected official, public official, public employee, constitutional official, or legislative employee, with a purpose of influencing or affecting the official conduct of such official or employee.

RSA 15-B:3

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GIFTS WHAT DOES THE RULE SAY (con’t)?

III. No elected official, public official, public employee, constitutional official, or legislative employee shall knowingly accept, directly or indirectly, any gift as defined in this chapter.

RSA 15-B:3

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AND HONORARIUMS

Expense reimbursements and honorariums are not prohibited, but…

Must be reported to the Secretary of

State

RSA 15-B:6; RSA 15-B:7

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EXPENSE REIMBURSEMENT

• ANOTHER DEFINITION:

• "Expense reimbursement'' shall mean any price, charge, fee,

expense, or other cost which is waived, forgiven, reduced,

prepaid, or reimbursed in any form for the reasonable

expenses of attendance, registration, travel, meals, or

lodging related to a bona fide conference, meeting, seminar

or educational or informational program, when the source of

such reimbursement is other than the state, a county, or the

United States of America.

RSA 15-B:5

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• ANOTHER DEFINITION:

• "Expense reimbursement'' shall mean any price, charge, fee,

expense, or other cost which is waived, forgiven, reduced,

prepaid, or reimbursed in any form for the reasonable

expenses of attendance, registration, travel, meals, or

lodging related to a bona fide conference, meeting, seminar

or educational or informational program, when the source of

such reimbursement is other than the state, a county, or the

United States of America.

RSA 15-B:5

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EXPENSE REIMBURSEMENT • WHAT DOES RULE SAY?

• An elected official, public official, public employee, constitutional official, or legislative employee may accept expense reimbursement for the reasonable expenses for food, travel, and lodging for a conference, meeting, seminar, or educational program which the person attends and that is related to the office, position, or employment held with the state or county.

• Must be disclosed.

• Disclosure must have attached a copy of the agenda or an equivalent document.

• Does not require reporting of a prepayment, underwriting, or reimbursement made by an organization to which the state or county pays dues, when the prepayment, underwriting or reimbursement is provided because of the dues paid.

RSA 15-B:3

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• EXPENSE REIMBURSEMENT BY THE STATE, FEDERAL GOVERNMENT OR A COUNTY DOES NOT NEED TO BE REPORTED

RSA 15-B:2, IV

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HONORARIUMS

ANOTHER DEFINITION:

"Honorarium'' means a payment in any form … for an appearance, speech, written article or other document, service as a consultant or advisor, or participation in a discussion group or similar activities. Honorarium does not include a payment for such activities for which the person is being compensated by the state, a county, the United States of America, or by any other employer or client, where the activity giving rise to the honorarium is not related to or associated with any public office or government employment.

RSA 15-B:2, VI

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HONORARIUMS

WHAT DOES THE RULE SAY?

– Honorariums are exempt from definition of gift.

– But - No public official or public employee shall

accept an honorarium from a person who is

subject to or likely to become subject to or

interested in any matter or action pending before,

or contemplated by, the public official, public

employee, or the governmental body with which

that person is affiliated. RSA 15-B:4

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REPORTING OF EXPENSE

REIMBURSEMENT OR

HONORARIUMS

• Honorariums and expense reimbursements shall be reported

to the Secretary of State (form is on the Secretary of State’s

website).

• No later than the last day of the next month after it was

received.

RSA 15-B:6; RSA 15-B:7

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GIFTS TO THE STATE

Nothing in the statute shall prohibit gifts or expense reimbursement made to the State of New Hampshire and accepted in accordance with the law.

RSA 4:8

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Penalty

Any person who knowingly or willfully violates RSA 15-B shall be guilty of a misdemeanor.

RSA 15-B:9

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New Hampshire State Code of Ethics

RSA 21-G:21 – :27 Statute effective June 2, 2006 Includes the following: -Conflict of Interest; -Misuse of Position; -Acceptance of Campaign Contributions; -Post Employment Restrictions (lobbying); -Supplemental Agency Ethics Codes; -Executive Branch Ethics Committee.

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New Hampshire State Code of Ethics

Applies to all “executive branch officials” Defined to include elected officials who hold an executive branch office, public officials, constitutional officials and public employees.

RSA 21-G:21, II-a

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Conflict of Interest

Executive branch officials shall not participate in any matter in which they, or their spouse or dependents, have a private interest which may directly or indirectly affect or influence the performance of their duties.

RSA 21-G:22

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“It is a general rule of law, and the law in New Hampshire, that there is a conflict of interest when a public officer votes on a matter in which he has a direct personal and pecuniary interest.”

Atherton v. Concord, 109 N.H. 164, 165 (1968) (internal quotations and

citations omitted).

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“The reasons for this rule are obvious. A man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a personal financial interest which is, or may be, in conflict with the public interest.” Atherton v. Concord, 109 N.H. 164, 165 (1968) (internal quotations and citations omitted).

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However, the rule is also well established that, to disqualify, the personal pecuniary interest of the official must be immediate, definite, and capable of demonstration; not remote, uncertain, contingent, and speculative, that is, such that men of ordinary capacity and intelligence would not be influenced by it. Atherton v. Concord, 109 N.H. 164, 165 (1968) (internal quotations and

citations omitted).

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The common law of New Hampshire identifies a conflict of interest where a potential exists for a public officer to influence the outcome of a matter in which he has a direct personal and pecuniary interest. Such conflict normally arises in a context where an official is acting in a judicial or legislative capacity.

Marsh v. Town of Hanover; Berlin, Hanover Town Manager; and Wood, Hanover

Fire Chief, 113 N.H. 667, 672 (1973) (emphasis added) (internal citations and

quotations omitted).

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“An act is judicial in nature if officials ‘are bound to notify, and hear the parties, and can only decide after weighing and considering such evidence and arguments, as the parties choose to lay before them.’" Appeal of Keene, 141 N.H. 797, 800 (1997) (quoting Sanborn v.

Fellows, 22 N.H. 473, 489 (1851))

“Legislative and administrative action, by contrast, is marked by ‘its high visibility and widely felt impact,’ from which an aggrieved person can find an ‘appropriate remedy ... at the polls.’ Appeal of Keene, 141 N.H. 797, 800 (1997) (quoting Winslow v. Holderness Planning Board,

125 N.H. 262, 266, (1984)).

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Conflict of Interest – Quasi Judicial

Part I, Article 35 provides that "[i]t is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit." We have held that this mandate applies to both trial judges and members of administrative boards acting in a quasi-judicial capacity.

Appeal of Town of Bethlehem, No. 2004-435 slip op. (N.H. November 2, 2006) (quoting Appeal of Grimm, 141 N.H. 719, 720 (1997)).

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Conflict of Interest – Quasi Judicial

An official performing a quasi-judicial act is not impartial where the complaining party can demonstrate that the official has:

N.H. Milk Dealers’ Ass’n v. Milk Control Board, 107 N.H. 335, 338-39 (1966).

a) A conflict of interest

b) Entertained ill-will towards any party, or

c) Prejudged the facts in the specific case

prior to the quasi-judicial act.

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Antagonistic Parties

A party cannot force disqualification by publicly attacking a quasi judicial official and then claiming these attacks must have caused the official to be biased against him. F.D.I.C. v. Sweeney, 136 F.3d 216, 220 (1st. Cir. 1998).

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Misuse of Position

Executive branch officials shall not:

Disclose or use confidential or privileged information

acquired in the performance of his or her duties for

the state for personal benefit or for financial gain.

Use his or her position with the state to secure

privileges or advantages for himself or herself, which

are not generally available to governmental

employees, or to secure governmental privileges or

advantages for others.

RSA 21-G:23

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Post Employment Restrictions

For 6 months after leaving employment, no executive branch official shall appear as a lobbyist:

– I. To promote or oppose directly any specific legislation pending or proposed before the general court; or

– II. To directly promote or oppose action or inaction on any matter, contract, license, permit, or administrative rule pending before the executive branch or with regard to any matter over which that executive branch official had personal and direct responsibility while in state government.

RSA 21-G:26

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Supplemental State Agency

Ethical Codes

In addition to this code, each agency may promulgate a supplemental ethics code to address issues specific to that agency. In the event of a conflict with the provisions of this code, a stricter provision of an agency code shall govern.

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Supplemental State Agency

Ethical Codes

To the extent that this code or an ethics code adopted by an agency shall apply to classified employees, this code, or an agency code, shall be interpreted to be consistent with the provisions of the classified employees' collective bargaining agreement and the state personnel rules.

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FINANCIAL DISCLOSURES

RSA 15-A - created a uniform statement of financial interests.

RSA 15-A

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Applies to:

– All candidates who file for state or county office.

– All persons filing an acceptance of nomination form for state or county office.

– All persons elected to state or county office.

– All persons appointed to such elective office to fill a vacancy.

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Applies to (con’t):

– Every person appointed by the Governor,

Governor and Council, President of the Senate, or

the Speaker of the House to any:

Board, commission, committee, board of

directors, authority, or equivalent state entity

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– All agency heads

– Any public official designated, due to the

responsibilities of the position, by the agency

head

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– The Secretary of State and the Treasurer

– Any subordinates designated, due to the

responsibilities of the position, by the Secretary of

State and the Treasurer.

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– Any person, not employed by or working under

contract for the state, who is acting on behalf of the

governor or an agency while engaged in state

business.

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Deadline for filing financial disclosures:

– Except those who are elected, within 14 days of

assuming the office, position, or appointment that

makes the person subject to this chapter, unless the

person has previously filed a statement during the

calendar year.

– Annually, no later than the third Friday in January.

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ORGANIZATION CHART

Rule:

Agency heads, the Governor, Secretary of State and Treasurer must submit to the Secretary of State an organizational chart identifying the names and titles of all persons in his or her department that are required to file a statement of financial interests.

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ORGANIZATION CHART

When Must The Organization Chart Be Submitted?

The initial organization chart was due the third Friday in January, 2007. The organization chart must be updated upon any change to the chart.

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Statement of Financial Interest:

– Within 14 days of assuming the office (unless elected), thereafter the 3rd Friday in January.

Organization Chart With Secretary of State

– Initial org. chart - third Friday in January, 2007 Thereafter, upon any change to the chart.

Honorarium or Expense Reimbursement Report:

– Last day of the month following the month during which the honorarium or expense reimbursement was received.

Post Employment Restriction:

– 6 months after leaving office.

SUMMARY OF DUE DATES

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21-G:24 Acceptance of

Campaign Contributions

An executive branch official who is a candidate for an elective office that is not subject to the reporting requirements of RSA 664 and who accepts a political contribution from any person or entity which is or is likely to become subject to that executive branch official's duties shall make a disclosure of such contributions to the secretary of state within 5 days of receipt of such contributions. The disclosure shall be in writing and on such form as the secretary of state shall prescribe.

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21-G:24 Acceptance of

Campaign Contributions

"Executive branch official'' for this purpose means a commissioned, unclassified, nonclassified, or classified executive branch employee or volunteer, who conducts state business on behalf of the governor, any executive branch official, agency. RSA 21-G:21; RSA 15-B:2

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Executive Branch Ethics

Committee

Issue guidelines

Issue interpretive rulings

Render advisory opinions

Receive sworn complaints

Investigate allegations of violations

Make findings of fact and conclusions with respect to allegations of violations

Limited Jurisdiction over classified employees

RSA 21-G:30

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Executive Branch Ethics

Committee

Questions, complaints, and requests for advisory opinions can be submitted in writing in care of the Attorney General’s Office.

– Generally, consult with your assigned

Attorney from the AG’s Office to ensure that

the question has not already been answered.

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Executive Branch Ethics Committee

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Jurisdiction for investigating complaints is limited to complaints regarding executive branch officials who are not classified employees

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Requests for advisory opinions can be received from any executive branch official or employee

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End

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